Ex Parte Horton et al

Patent Trial and Appeal Board

Sep 2, 2016

13924609 (P.T.A.B. Sep. 2, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/924,609 06/23/2013
63759 7590 09/07/2016
DUKEW, YEE
YEE & AS SOCIA TES, P.C.
P.O. BOX 802333
DALLAS, TX 75380
FIRST NAMED INVENTOR
Nathaniel Thomas Horton
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
07-1152-US-CNT 8823
EXAMINER
AHN,SUNGS
ART UNIT PAPER NUMBER
2631
NOTIFICATION DATE DELIVERY MODE
09/07/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
ptonotifs@yeeiplaw.com
mgamez@yeeiplaw.com
patentadmin@boeing.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NATHANIEL THOMAS HORTON,
KENNETH PATRICK KIRCHOFF, and
DENNIS MICHAEL LEWIS
Appeal2015-003710
Application 13/924,609
Technology Center 2600
Before JON M. JURGOVAN, JOHN F. HORVATH, and
AARON W. MOORE, Administrative Patent Judges.
JURGOVAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek review under 35 U.S.C. § 134(a) from a Final
Rejection of claims 11-20 and 22-31. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm-in-part.2
1 Appellants identify The Boeing Company of Chicago, Illinois as the real
party in interest. (App. Br. 2.)
2 Our Decision refers to the Specification, filed June 23, 2013 ("Spec."), the
Final Office Action, mailed April 14, 2014 ("Final Act."), the Appeal Brief,
filed Aug. 14, 2014 ("App. Br."), the Examiner's Answer, mailed Dec. 4,
2014 ("Ans."), and the Reply Brief, filed Feb. 4, 2015 ("Reply Br.").
Appeal2015-003710
Application 13/924,609
CLAIMED SUBJECT MATTER
The claims are directed to identifying attenuation within a structure
using electromagnetic signals transmitted at a plurality of locations within
the structure and received external to the structure. (Spec., Abstract i-fi-145-
47.) Claim 11, reproduced below, is illustrative of the claimed subject
matter:
11. A method for identifying attenuation within a structure, the
method comprising:
transmitting a plurality of electromagnetic signals that are
stepped through a plurality of frequencies in a frequency range
from a plurality of locations within the structure,
measuring electromagnetic signals received at a receiver
on the exterior of the structure in response to transmitting the
plurality of electromagnetic signals to form a plurality of
measurements;
performing a statistical analysis using the plurality of
measurements to form a result; and
predicting a set of attenuations for the structure using the
result.
(App. Br. 17 - Claims App.)
REJECTIONS
Claims 11, 12, 16-20, and 27-30 stand rejected under 35 U.S.C.
§ 103(a) based on Hatfield (Michael 0. Hatfield et al., ELECTROMAGNETIC
REVERBERATION CHARACTERISTICS OF A LARGE TRANSPORT AIRCRAFT, 1-1 - 7-2
(July 1994) (Naval Surface Warfare Center, Dahlgren Division)) and Cooper
(Elizabeth 0. Cooper, ELECTRICAL AND COMPUTER ENGINEERING PROFESSOR
STUDIES How WIRELESS COMPUTERS INTERFERE WITH AIRPLANE
COMMUNICATION SYSTEMS, Quest, 19-21 (2005)). (Final Act. 2-12.)
Claims 13-15 stand rejected under 35 U.S.C. § 103(a) based on
Hatfield and Cooper. (Final Act. 12-14.)
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Application 13/924,609
Claims 23-26 and 31 stand rejected under 35 U.S.C. § 103(a) based
on Hatfield, Cooper, and Mulder (E. De Mulder et al., Electromagnetic
Analysis Attack on an FPGA Implementation of an Elliptic Curve
Cryptosystem, 1879-82 (Apr. 6, 2005) (Old Dominion Univ., 2nd Annual
Research Day)). (Final Act. 15-20.)
ANALYSIS
A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
between the claimed subject matter and the prior art are such that the subject
matter, as a whole, would have been obvious at the time the invention was
made to a person having ordinary skill in the art to which said subject matter
pertains. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) ("KSR").
The question of obviousness is resolved on the basis of underlying factual
determinations, including: (1) the scope and content of the prior art; (2) any
differences between the claimed subject matter and the prior art; (3) the level
of skill in the art; and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966).
With this background in mind, we proceed to analysis of Appellants'
arguments and the Examiner's findings and conclusions of obviousness.
Claim 11
A. Argument concerning measuring electromagnetic signals on the
exterior of the structure that are transmitted from within the structure
Appellants argue the Examiner errs in the rejection because the
combined references allegedly fail to teach or suggest the claimed limitation
"measuring electromagnetic signals received at a receiver on the exterior of
the structure in response to transmitting the plurality of electromagnetic
signals [from within the structure]." (App. Br. 8-10; Reply Br. 2--4.)
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Application 13/924,609
According to Appellants, Hatfield's receivers are only within the cockpit and
avionics bay of an aircraft, and such reference is silent with respect to
signals received at a receiver on the exterior of a structure. Appellants
acknowledge Cooper discloses an antenna on the exterior of a plane, but
contend this reference does not suggest any measurements are taken at this
or any other antenna on the plane. (Id.)
We disagree with Appellants' argument. Among the paragraphs of
Cooper specifically relied on by the Examiner, Cooper teaches "PEDs
[personal electronic devices] may emit electromagnetic waves, with their
signals detected by the various radio receiver antennas installed on the
airplane." (Cooper p. 20, i-f 1; see Final Act. 5.) Cooper also teaches "IPL
[interference path loss] is a measurement of the radiated field coupling
between various locations in the passenger cabin and aircraft communication
and navigation systems through their antennas." (Cooper p. 20, i-f 3.)
Moreover, Hatfield teaches that communication and navigation antennae are
located on the exterior of an aircraft. (See, e.g., Hatfield Fig. 2-2.) Thus,
contrary to Appellants' assertion, the combined references teach the
measuring of claim 11.
Appellants also argue that Cooper does not disclose measuring the
interference path loss, but rather the interference that personal electronic
devices have on an airplane's communication systems. (Reply Br. 4.)
Appellants' assertion is incorrect: Cooper does teach interference path loss,
as noted. (See Cooper p. 20, i-f 3, discussed supra.) Moreover, this argument
is not supported by any corresponding language in the claim, which does not
recite measurement of an interference path loss. Arguments must be
commensurate in scope with the actual claim language. In re Self, 671 F.2d
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1344, 1348 (CCPA 1982). Accordingly, we do not find this argument
persuasive to show Examiner error.
Appellants further characterize Cooper as a non-scientific university
periodical summarizing ongoing research at a layperson level. (App. Br. 9.)
To the extent this remark is intended as an argument, we note that
Appellants' subjective assessment of the reference is not evidence that could
support reversal of an obviousness rejection. See In re Pearson, 494 F.2d
1399, 1405 (CCPA 1974) (attorney argument is not evidence). Moreover,
the proper vantage point for considering references used in an obviousness
rejection is that of the person of ordinary skill in the art. See KSR, Graham,
supra. That a layperson may also be able to understand the reference is
immaterial in the obviousness analysis. Thus, we do not find this argument
persuasive to show error in the Examiner's rejection.
B. Argument concerning predicting a set of
attenuations for the structure using the result
Claim 11 recites "predicting a set of attenuations for the structure
using the result." (App. Br. 17 - Claims App.) Appellants argue the
combined references fail to teach or suggest this claim limitation because
Cooper is silent regarding this feature, and Hatfield fails to teach their
theoretical predictions are made using the results of measured cavity loss
analysis. (App. Br. 10; Reply Br. 5---6 (citing Hatfield, sect. 4.4, pp. 4--7).)
Appellants also argue Hatfield's theories lead to failed predictions on the
basis of the relative standard deviation of measured data versus predicted
values. (Id.)
The Examiner finds this claim limitation taught by Hatfield, which
teaches statistical parameters of electromagnetic energy (EME) are used to
measure cavity loss (i.e., attenuation due to interference path loss) for
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various test configurations. (Final Act. 4 (citing Hatfield Abstr., pp. 4-2, 4-
7).) The Examiner also finds Cooper teaches development of theoretical
models based on experimentally measured data to accurately predict
electromagnetic wave propagation using antennas installed on an aircraft.
(Final Act. 5 (citing Cooper p. 20, iii! 1-3, 6, 7).) Specifically, Cooper states
"[t]o formulate a theoretical model and determine electromagnetic waves'
effect on future aircraft, Vahala' s team combines experimental data from
aircraft on the tarmac with findings from a reverberation chamber." (Cooper
p. 20, ir 6.)
Thus, contrary to Appellants' assertion, Cooper is not silent regarding
the claimed feature. Appellants' argument attacks Hatfield alone without
considering that the Examiner actually relies on teachings from both
Hatfield and Cooper. (See Final Act. 3-5; Ans. 4--5.) "Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references." In re
Ji;ferck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller,
642 F.2d 413, 425 (CCPA 1981)).
Furthermore, Appellants argue Hatfield's theories yield failed
predictions, but have not identified any evidence supporting this assertion.
We find no evidence in the record that the person of ordinary skill in the art
would consider the stated standard deviations of actual measurements versus
predicted values in Hatfield to be "failed predictions." Mere attorney
argument, unsupported by evidence, is not persuasive to show Examiner
error. See Pearson, supra.
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Claim 27
C. Argument concerning locations within the structure
Appellants argue for patentability of claim 27 on the same basis as
stated for claim 11. (App. Br. 12; Reply Br. 7 .) For the reasons mentioned,
we are not persuaded of Examiner error on this basis with regard to the
rejection of claim 27.
Appellants also argue the cited references fail to teach or suggest
transmitting a plurality of electromagnetic signals that are
stepped through a plurality of frequencies in a frequency range
from a plurality oflocations within the structure including at least
two of the group consisting of a flight deck, a main cabin, a
galley, a cargo hold, and an upstairs cabin
as recited in claim 27. Specifically, Appellants argue Hatfield teaches the
claimed feature only with respect to a flight deck and avionics bay, and
Cooper suggests testing for interference loss in the passenger cabin.
Again, "[ n ]on-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references." In re Merck & Co., 800 F.2d at 1097. The
Examiner finds, and Appellants' agree, that Hatfield discloses its
electromagnetic analysis includes transmissions from the avionic
bay/cockpit (flight deck). (Final Act. 6 (citing Hatfield Fig. 2-9, Figs. 3-5 -
3-14, pp. 2-1-2-3, pp. 3-1, 3-2).) The Examiner also finds, and Appellants
agree, that Cooper discloses measuring electromagnetic interference from
transmissions made in the passenger main cabin. (Final Act. 7 (citing
Cooper p. 20, i-fi-f l-3, 6, 7, and p. 21, i13).) Reviewing the cited sections of
the references, we agree with the Examiner that the combination of Hatfield
and Cooper teaches performance of electromagnetic analysis by
transmission of signals in at least the flight deck and main cabin, constituting
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two or more of the recited group of locations of a structure. Thus, we are
not persuaded of Examiner error.
Claim 31
D. Argument concerning increasing the step size responsive to a
determination a correlation value is greater than zero
Claim 31 recites
responsive to a determination that the value [representing
the degree of correlation among data representing the
electromagnetic signals] is greater than about zero, at least one
of increasing a step size of the plurality of frequencies and sifting
the data to obtain an uncorrelated data set, and then re-
performing transmitting, measuring, performing, and predicting.
(App. Br. 22- Claims App.) Appellants argue Hatfield is silent regarding
increasing a step size responsive to a determination that the correlation value
is greater than zero. (App. Br. 14.) The Examiner relies on Hatfield's
varying the spectrum analyzer sweep rate which, according to the Examiner,
implicitly sets the step size greater than zero. (Ans. 9-10.) The Examiner
acknowledges the claimed sifting is not disclosed in Hatfield. (Final Act.
1 7.) The Examiner also relies on Mulder to teach the claimed correlation
feature. (Final Act. 17-18 (citing Hatfield Fig. 2-9, Figs. 3-5-3-14, pp. 2-
2, 2-3, 3-1, 3-2, Mulder p. 1880, sect. C-Correlation Analysis).)
We agree with Appellants' argument. We do not find increasing step
size of transmitting frequencies responsive to determining a degree of
correlation between data representing electromagnetic signals in the cited
parts of Hatfield and Mulder. The Examiner made no showing that the
sifting feature is present in the combined references. Accordingly, we do
not sustain the rejection of claim 31.
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E. Argument concerning increasing the step size
of a plurality of frequencies
Appellants argue Hatfield and Mulder fail to disclose "increasing a
step size of the plurality of frequencies" as recited in claim 31. (App. Br.
15; Reply Br. 10-11.) Specifically, Appellants argue that Hartfield discloses
testing for interference at different frequency values, but not the claimed
feature. Appellants contend Mulder is silent regarding this feature.
The Examiner relies on Hatfield's varying the sweep rate of its
spectrum analyzer which implicitly sets the step size at a specific level
(smaller step size will yield finer measurements while large step size will
reduce the testing time). (Ans. 10 (citing Hatfield Fig. 2-9, Figs. 3-5 - 3-14,
Abstract, pp. 2-2, 2-3, 3-1, 3-2, 4-2, 4-7).)
We agree with Appellants' argument. Stepping the sweep rate per
Hatfield is not equivalent to stepping the transmitting frequencies of the
electromagnetic signals as claimed. Accordingly, we do not sustain the
rejection of claim 31 for this additional reason.
Claims 16 and 17
F. IdentifYing paths with the largest and smallest attenuations
Claim 16 recites "identifying a path from a location within the
plurality of locations to a receive antenna, wherein the path has a largest
amount of attenuation." Claim 17 recites "identifying a path from a location
within the plurality of locations to a receive antenna, wherein the path has a
smallest amount of attenuation." Appellants argue Hatfield and Cooper fail
to teach or suggest these features. (App. Br. 12-13; Reply Br. 8-10.)
Specifically, Appellants state Hatfield discloses measurement of loss
from transmitters to receivers in an aircraft's interior, but is silent regarding
identifying any path from transmitters to receivers having the largest or
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smallest attenuation as claimed. Appellants state the Examiner relies on
inherency in Hatfield's loss measurements to disclose these features, but
argue that inherently disclosing the existence of a path with largest or
smallest attenuation is not the same as identifying the paths producing the
largest or smallest loss measurements. Appellants contend Cooper is also
silent with respect to the claimed features.
We do not agree with Appellants' arguments. The Examiner relies on
Hatfield's teaching of different configurations and multiple runs to measure
cavity loss which implicitly include the best case (smallest amount of
attenuation) and the worst case (largest amount of attenuation). (Final Act.
8-9 (citing Hatfield pp. 4-2, 4-7).) We agree with the Examiner that a
person of ordinary skill in the art considering the combined references would
have understood that identifying the transmitters and receivers generating
the largest and smallest path loss also identifies the path between them
because the locations of the transmitters and receivers are known. In other
words, the paths are identified by straight lines between the transmitters and
receivers producing the largest and smallest path loss. Thus, we are not
persuaded by Appellants' argument.
Claim 18
For the first time, in their Reply Brief, Appellants submit arguments
concerning claim 18, but do not provide a showing of good cause why these
arguments should be considered in the present posture of this case. (Reply
Br. 7-8.) Absent a showing of good cause, we do not consider new
arguments in a Reply Brief. 37 C.F.R. § 41.41(b)(2).
Remaining Claims
No arguments are made with respect to the remaining claims.
Accordingly, we affirm the rejections of those claims for the reasons stated
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for the claims from which they depend. In re King, 801 F.2d 1324, 1325
(Fed. Cir. 1986), In re Sernaker, 702 F.2d 989, 991 (Fed. Cir. 1983), 37
C.F.R. § 41.37(c)(l)(iv).
DECISION
We sustain the rejections of claims 11-20 and 22-30 under 35 U.S.C.
§ 103(a). We do not sustain the rejection of claim 31.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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